Bench Memos

Trouble in the Heartland

Kansas Gover Kathleen Sibelius is in the news for two reasons.  One is that some people think she would be a good running mate for Barack Obama.  The other is that Archbishop Joseph Naumann of Kansas City publicly stated that she should not receive Holy Communion until she repudiates her pro-abortion positions.  The Archbishop cited several Sibelius vetos of abortion-restricting bills, particularly the recently passed Comprehensive Abortion Reform Act.

The archbishop is responsible for the spiritual welfare of all Catholics within his archdiocese, including Governor Sibelius.  His action flows from that responsibility and is not meant to be, nor should it be understood as, ecclesiastical interference in political matters.

Governor Sibelius’ response, however, raises an interesting and important question of constitutional law.  She (partly) explains her vetoes as requirements of office, and not (at least not necessarily) as her own preferences.  She says that court decisions about abortion rights show that the bills cross the constitutional line, and that her oath therefore requires her to  veto the bills as unconstitutional. 

By “unconstitutional” Governor Sibelius almost certainly means: contrary to a present majority view on the Supreme Court.  But this is not the same thing as the Constitution or a sound interpretation of it.  She should not veto an abortion bill based upon what five Justices say the Constitution means, unless that is also her view of what the Constitution truly requires.  After all, she swore to “support the Constitution”, not whatever a court says about it. 

Maybe — maybe — it is sometimes legitimate for a governor to veto a bill which she thinks is constitutionally sound, but which she is sure a court will strike down, saying: ‘though I disagree with the Court’s interpretation, there is no realistic prospect that will change soon.  Thus this good law is bound to be enjoined immediately, do no good for that reason, cost a lot to defend  with no prospect of victory in sight, etc.  But when fundamental matters of justice are at stake  — as they are with abortion  –  this won’t do.

So, if Governor Sibelius holds what she ought to hold about when people begin — at fertilization — and if she glances at the Equal Protection Clause of the Fourteenth Amendment, she will see where her constituional duty lies: assuring equal treatment for all persons (including those not yet born) under the homicide laws of Kansas. 

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